On July 20, 2022, the Second Department issued a decision in Bank of N.Y. Mellon v. McCaffrey, 2022 NY Slip Op. 04619, affirming the denial of summary judgment in a foreclosure action because the lender failed to establish that its RAPL 1303 notice complied with the statute’s type-face requirements, explaining:
The plaintiff, however, failed to demonstrate, prima facie, its compliance with RPAPL 1303. RPAPL 1303 requires that a notice titled “Help for Homeowners in Foreclosure” be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one- to four-family dwellings. The statute mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type. Proper service of an RPAPL 1303 notice is a condition precedent to commencing a foreclosure action, and the plaintiff has the burden of showing compliance with the statute. The plaintiff’s submissions, including the process server’s affidavit of service and a copy of the subject notice, did not demonstrate that the notice served upon the defendant complied with the type-size requirements in RPAPL 1303.
Since the plaintiff failed to meet its prima facie burden, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants’ answer, and for an order of reference should have been denied. The plaintiff’s subsequent motion to confirm the referee’s report and for a judgment of foreclosure and sale also must be denied.
(Internal citations omitted) (emphasis added).